Two new FOIA lawsuits about detainees and surveillance — explained

In the past few weeks, the New York Times and I have filed two new Freedom of Information Act lawsuits. This post will explain them. (The hard work, as always, is being done by the NYT’s lawyer, David McCraw, as well as our outgoing annual NYT First Amendment fellow, Tali Leinwald, who is off to clerk on the Third Circuit, and our incoming fellow, Ian MacDougall.)

We filed the first lawsuit against the Justice Department and the Office of the Director of National Intelligence on August 2. It seeks the approximately 240 reports assessing the threat posed by each of the detainees who remained at Guantanamo Bay when President Obama took office. They were produced by a six-agency task force which re-evaluated the evidence about what each man had done before his capture, as well as his behavior in prison, and recommended whether to transfer him, prosecute him, or continue to hold him indefinite wartime detention without trial. These reports replaced, and in many cases corrected errors in, the military’s Joint Task Force threat assessments produced during the Bush administration years; those are the dossiers Chelsea Manning leaked via WikiLeaks. I laid out the moral and policy case for making the 2009 set public, too, in this Sunday Review piece. Judge Richard Berman has the case.

We filed the second lawsuit yesterday against the Justice Department. Assigned to Judge Lewis Kaplan, it combines requests for several post-9/11 legal policy matters the department has handled:

  • The first document it seeks is a May 4, 2005, memo signed by Pat Rowan, a national security lawyer in the Bush Justice Department, about the department’s discovery obligations when using evidence obtained or derived from the Stellarwind warrantless surveillance and bulk data collection program in court against a criminal defendant.
    • Discussion: A big issue regarding the N.S.A.’s warrantless surveillance program, both before and after Congress legalized it, is whether and when criminal defendants who face evidence obtained or derived from it should get notice from prosecutors about where that evidence came from. This is important because they have legal standing to challenge the lawfulness of the surveillance that gathered the evidence. To date, the government has successfully prevented a definitive examination of the merits of Stellarwind; in 2006, a district court judge ruled that it was illegal, but an appeals court vacated that ruling on the technical grounds that the plaintiffs did not have standing. No criminal defendant was ever notified that some evidence came from the program, and the Obama administration, in a previous FOIA lawsuit we brought for a Justice Department inspector general report about Stellarwind, redacted much of a lengthy portion about possible Brady violations – that is, instances in which prosecutors may have unlawfully withheld evidence from the defense that could have helped it – regarding the program. But that report included an unredacted sentence referring to the existence of this memo.
  • The second document is the “Standard Minimization Procedures for FBI Electronic Surveillance and Physical Search Conducted Under the Foreign Intelligence Surveillance Act” that were approved by the Attorney General on October 22, 2008 and later submitted to the Foreign Intelligence Surveillance Court.
    • Discussion: The FBI’s minimization procedures for FISA information are its rules for sharing and disseminating information gathered under the Foreign Intelligence Surveillance Act — and, since 2007, the warrantless surveillance program governed by the Protect America and the FISA Amendments Act. The government has issued later versions of these procedures, but not this set, which should help show how the practice of “backdoor searching,” or government agents looking at private communications previously collected without a warrant for Americans who have become the subject of their suspicions, began. See this post for more discussion of what we already know about how this got going.
  • The third document is the August 2009 final report of the 2009 executive order task force on rendition/interrogation policy. The fourth document is the January 2010 final report of the 2009 executive order task forces on detention policy.
    • Discussion: In 2009, when Obama took office, he set up three captives-related executive order task forces – each interagency but led or co-led by the DOJ. One re-assessed the remaining Guantanamo detainees and recommended what to do with each; its final report is already public but we are suing in a separate case to get the individual assessments as noted above. The other two dealt with what to keep and what to change about rendition and interrogation policy, and future detainee policies, respectively. Their final reports are not public, although I wrote about their contents in Power Wars. See Chapter Four Section Fourteen (“The Interrogation and Rendition Task Force”) and Chapter Seven Section One (“The Straw Man Plan for Future Captures”).
  • The last request is for a set of documents filed by the department in 2011 before the Foreign Intelligence Surveillance Court in connection with a case that dealt with “upstream,” or network-switch-based, surveillance under the FISA Amendments Act.
    • Discussion: In August 2013, as part of the wave of declassifications of FISA Court materials after the Snowden leaks, the government made public redacted versions of an Oct. 3, 2011 ruling and a Nov. 3, 2011 ruling by Judge John Bates, then the presiding judge of the FISA Court, an a case that dealt with a technical problem raised by upstream Internet surveillance under the FISA Amendments Act. Judge Bates found that the NSA had been violating the Fourth Amendment in certain ways, and then he ruled that a fix proposed by the NSA would solve the problem. His rulings are the source of widely cited numbers about the program – that the NSA was collecting about 250 million communications annually from it, of which 9 percent came from upstream and 91 percent came from Prism. I suspect that Judge Bates misinterpreted something and that these numbers are inaccurate. (See this post.) We are seeking the remaining documents from the litigation, including the Justice Department’s submissions which he was working with when he wrote his opinion.

Stay tuned.